The Supreme Court on Tuesday decided to hear in open court the curative petition filed by gay activists and Naz Foundation seeking to cure the defects in the judgment upholding the validity of Section 377 IPC insofar as it recriminalises homosexuality between two consenting adults on the ground that there was no constitutional infirmity in this provision.

A four-judge Bench of Chief Justice P. Sathasivam and Justices R.M. Lodha, H.L. Dattu and S.J. Mukhopadhaya in a brief hearing in the chamber directed the curative petitions to be listed next week.

The Curative Petition challenges both the December 11, 2013 judgment and the January 2014 order to cure the gross miscarriage of justice. It said, “The effect of recriminalisation on account of the impugned judgment has caused immense prejudice to gay activists, who have been put at risk of prosecution under Section377 IPC, on account of the association between homosexuality and penile-anal/penile-oral sexual acts.”

The petitioner drew the court’s attention to the fact that under an amendment introduced in the IPC in 2013, Section 375 of the IPC in 2013 makes penile non-vaginal sexual acts, between man and woman, without consent an offence. By necessary implication, such sexual acts between man and woman, which are consensual, are no longer prohibited.

Consequently, the petitioner said, “These consensual acts between man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant. Therefore Section 377 now effectively only criminalises all forms of penetrative oral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of Article 14.”

Further it said, “This Court has incorrectly held that a minuscule fraction of population cannot claim fundamental rights, thereby rendering the Part III of the Constitution meaningless for all individuals and minority communities in India. This finding has caused immense public injury and if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens. The judgment reflects an issue of bias against the Lesbian Gay Bisexual and Transgender (LGBT) persons.”

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